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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 169 (KLR)

Be Energy Limited v Kyms Liquor Store (Environment and Land Appeal 3 of 2024) [2025] KEELC 169 (KLR)

Court not expressly named in the judgment (sits at Kajiado)
21 January 2025
MMM.D. Mwangi
1,879 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kajiado court ruled it cannot release deposited funds after striking out an appeal, because without jurisdiction all earlier orders become void.

What this practically means

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Executive summary

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This ruling by M.D. Mwangi, J at Kajiado determines the Appellant's preliminary objection dated 28th October 2024 against the Respondent's Notice of Motion dated 17th October 2024. The Respondent had sought release of decretal funds of Kshs. 4,032,095/= deposited in a joint interest earning account under a consent order recorded on 23rd January 2024, which had granted the Appellant 21 days to deposit the decretal amount and stayed execution pending appeal. The appeal had been struck out on 9th May 2024 for want of jurisdiction. The Appellant objected that the court, having declined jurisdiction, could not make further orders and that the consent order was a nullity. The court framed one issue: whether it had jurisdiction to hear the application. Relying on Samuel Kamau Macharia and Owners of the Motor Vessel 'Lillian S', it held that a court lacking jurisdiction downs its tools and cannot take further proceedings, save for costs under Section 27 of the Civil Procedure Act. Applying the functus officio doctrine from Raila Odinga and Esther Tala Chebiegon, the court held that a party is 'successful' only upon a merits determination, that no such determination existed, and that the consent order and prior orders were rendered null and void by the strike-out. The preliminary objection was upheld, the Respondent's application struck out with costs, and the court made no further orders, having already downed its tools. Counsel: Mr. Banda for the Appellant; Ms. Oketch for the Respondent; Court Assistant Mpoye.

Key legal issues

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01

Jurisdiction over post-strike-out application for release of deposited security

Holding

The court lacks jurisdiction to entertain the Respondent's application after striking out the appeal for want of jurisdiction; the preliminary objection is upheld.

Reasoning

The court invoked the centrality of jurisdiction (Samuel Kamau Macharia; Lillian S), held that a party cannot take further proceedings once an order declining jurisdiction is made, and applied the functus officio doctrine (Raila Odinga) and Esther Tala Chebiegon. The consent order adopted before a court without jurisdiction was rendered null and void, so the deposited funds cannot be released.

p. 4
02

Effect of striking out an appeal on consent orders and security deposited

Holding

All orders earlier issued, including the consent order of 23rd January 2024 depositing decretal funds in a joint interest earning account, were rendered null and void upon the appeal being struck out for want of jurisdiction.

Reasoning

The court agreed with the Appellant that orders emanating from proceedings in which the court lacked jurisdiction were nullities; consequently the application seeking release of the funds to the Respondent had no legal substratum and invited the court to make a determination in a non-existent appeal.

p. 4

Legal principles established

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  • Once a court strikes out a matter for want of jurisdiction and downs its tools, it becomes functus officio and cannot entertain further applications in the matter, including for release of security deposited under a consent order
  • A party is only successful if the main claim is heard and determined on merit in its favour

Court orders

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  1. 1.The Preliminary Objection is merited
  2. 2.The Respondent's Notice of Motion Application dated 17th October 2024 is struck out
  3. 3.The application is struck out with costs to the Appellant
  4. 4.The court makes no further orders having already downed its tools
On appeal from
trial court (not named)
Jurisdiction invoked
Appellate jurisdiction over a struck-out appeal; Section 27 of the Civil Procedure Act (costs) invoked

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Be Energy Limited v Kyms Liquor Store (Environment and Land Appeal 3 of 2024) [2025] KEELC 169 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/169/eng@2025-01-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.